Semi-Presidentialism and Democratisation in Poland
IAIN MCMENAMIN
School of Law and GovernmentDublinCityUniversity
Dublin 9, Ireland
Phone: + 353 1 700 8072
Fax: + 353 1 700 7374
Introduction
Polish semi-presidentialism evolved from a pacted transition between the leadership of the communist regime and the Solidarity opposition movement. The mechanics of semi-presidentialism, as well as its effect on democratisation, depend upon the constitution, the party system and the personality of the president. Poland has had three semi-presidential constitutions, a variety of relationships between president and government as well as government and parliament, and two very different presidents. In the early years, the absence of the conditions for stable semi-presidentialism had a negative effect on democratisation. Later on, conditions were more supportive, and semi-presidentialism began to play a more positive role. Before the introduction of semi-presidentialism in November 1990, Polish elites had already established a firm consensus on democracy, which was buttressed by consensus on the economic system and international relations. Therefore, the conflicting legitimacies generated by semi-presidentialism delayed but did not prevent, or seriously threaten, democratic consolidation in Poland.
Origins
Some of the concrete institutional characteristics of contemporary Polish semi-presidentialism are to be found in Polish constitutional history and in the constitutions of other contemporary European democracies (Hayden 2006, p. 174; Sanford 2002, pp. 76-77). However, semi-presidential institutions were not chosen from a set of available constitutional models. Rather, Polish semi-presidentialism is the result of a series of highly political decisions taken under very different and unforeseen circumstances. The first and most important decision was the deal agreed between the communist and Solidarity sides at the Round Table talks from February to April 1989. The centrepiece of the agreement was a parliamentary election on the basis of a unique system of “compartmentalised competition” (Olson 1993). It reserved 65 per cent of the seats in the elections to the lower house of parliament (the Sejm) for the communist party and its satellites, while 35 per cent was to be open to competition amongst opposition candidates. Meanwhile, election to a new Senate would be entirely free. The communist side sought the introduction of a new presidency, designed for their leader General Jaruzelski. It would provide a guarantee and reassurance to the party-state and the Soviet Union. The agreement created a potentially powerful presidency to be elected by a joint sitting of the houses of parliament (Salmonowicz 1989, pp. 10-11). Thus, the deal established a dual executive, rather than semi-presidentialism.
Both sides had very vague ideas about how the system would operate in the immediate future (Osiatyński 1996, p. 58). The agreement simply notes that the agreement is “an important step towards the creation of a new democratic order” (Salmonowicz 1989, p. 11). In the scenario of democratisation, it was consistent with the explicitly “evolutionary” logic of the round table (Salmonowicz 1989, p. 6) that existing institutions would be democratised. One method of democratising the presidency would be direct election, thereby establishing semi-presidentialism. Democratisation could also have proceeded by simply democratising the parliament, which could then provide democratic legitimacy for a new president elected by its members. Another option would have been to simply abolish the presidency.
Competition was not as compartmentalised as had been planned. In the June 1989 election, Poles not only voted overwhelmingly for Solidarity, they voted against communism by crossing out names on lists reserved for the communist party. Humiliatingly, Jaruzelski had to rely on spoiled Solidarity votes for election to the presidency. The hitherto supine satellite parties defected to the opposition, allowing the election in August 1989 of Solidarity’s Tadeusz Mazowiecki as the region’s first non-communist prime minister for forty years. As communism fell in neighbouring countries, the communist president Jaruzelski increasingly became an anachronism.
A parliamentary system was the preference of the intellectual wing of Solidarity, which dominated Mazowiecki’s government. By the time Jaruzelski’s role in reassuring the Soviets was obviously superfluous, this wing of Solidarity was in open war with the charismatic leader of the Solidarity trade union, Lech Wałęsa. Mazowiecki thought he would have a better chance against Wałęsa in a popular election than in an election by the two houses of parliament (Wołek 2004, p. 126). While initially calculating that he could win an election according to the original method, Wałęsa, who saw himself very much as a tribune of the people, also came out in favour of direct election. His justification for doing so was the illegitimacy of the “contract Sejm” and the gradualism of the Mazowiecki government. In September, the Sejm changed the constitution to allow the direct election of the president. Wałęsa, won 74 per cent of the vote in a run-off against the previously unknown émigré populist, Tymiński in December 1990. Prime minister Mazowiecki had been eliminated in the first round with a disastrous 18 per cent.
As early as autumn 1989, the contract Sejm formed a consensus on the procedure for writing a new constitution. There was to be a joint committee of 10 Senators and 46 Sejm deputies, whose draft would have to be passed by a two-thirds majority in a joint sitting of both houses of parliament. The final requirement was a simple majority in a national referendum. The 1997 Constitution was produced by an essentially similar framework adopted by the freely elected Sejm in April 1992. In both the contract Sejm and its successor, political fragmentation precluded any progress. Moreover, a new constitution was simply not necessary for democratisation to proceed. Like its neighbours, Poland was able to proceed on the basis of an amended communist-era document. However, a new constitution was desirable, especially as regards the institutions of semi-presidentialism. In 1992, the Sejm and Senate passed a substantial set of constitutional revisions, known as the Little Constitution. The principal aim of these amendments was to regularise the vague and conflict-ridden relationship between president, government and Sejm. This was an explicitly temporary measure. Nonetheless, the Little Constitution’s achievement of a consensus on an adjustment and clarification of the basic political structure made fundamental changes under a new constitution less likely.
In the 1993 parliamentary elections, the one-third of voters that opted for the divided mainstream anti-communist right found themselves without parliamentary representatives. A “constitutional coalition” of the post-communist left, peasants, and the liberal (ex-opposition) centre took advantage of the opportunity to pass a new constitution. Their work was further facilitated by post-communist Aleksander Kwaśniewski’s victory over Wałęsa by 51.7 to 48.3 per cent in the second round of the November 1995 presidential election. The 1997 constitution reduced the president’s power to the benefit of the prime minister but most importantly it confirmed the semi-presidential system in Poland.
Low turnout and highly disproportional result meant that the Sejm that produced the Constitution represented only one third of eligible voters (Jasiewicz 2000, p. 112). The Constitution itself was passed by a 53 per cent majority on a 43 per cent turnout. Within months the extra-parliamentary right, which had bitterly contested the Constitution, had won an election and returned to power. Thus, many have questioned the legitimacy and permanence of the 1997 Constitution (Wyrzykowski 2001). However, much of this dissensus related to ideological and historical symbolism (see the Constitution’s almost schizophrenic preamble) rather than the division of power between institutions (Osiatyński 1997). For example, the constitutions drafted by the post-communist left and the Solidarity Trade Union in 1994 are very similar to each other and the 1997 Constitution, in terms of major presidential powers such as veto override, presidential election, government nomination and dismissal. The big difference is that the right supported presidential control of defence, while the left wanted to place defence under the government (Chrusćiak 1997).
Constitutional Powers
The greatest potential power afforded to the president by the amended communist constitution was to dissolve the Sejm if he judged it to be threatening his ability to carry out his responsibilities to safeguard the sovereignty, security and international alliances of the state or if it failed to approve a prime minister, a national plan or a budget within three months (Article 30.2). The president also had the exclusive right to nominate and propose the dismissal of the prime minister to the Sejm (32.1) and must be consulted by the prime minister in the appointment of all ministers (37). The president had the power to act in foreign affairs and defence without the co-signature of the prime minister. He had very significant powers of non-ministerial appointment, with and without the necessity of parliamentary approval (32.f.1, 40, 61.4, 65.1). The president had a right of legislative initiative (20.4) and could refer a bill to the Constitutional Tribunal for a decision on its constitutionality (27.4). The Sejm needed a two-thirds majority to override his legislative veto. There was no line-item veto.
I will now mention the principal changes introduced by subsequent constitutions. According to the Little Constitution (signed into law in November 1992), the president could no longer dissolve the Sejm for interfering with his responsibilities, or for not producing a national plan. A new more complicated system of government formation was introduced. Initially, the president nominates the prime minister. The Sejm must approve the prime minister and his cabinet by absolute majority. If the president’s nomination is unsuccessful the Sejm can choose a prime minister and cabinet by absolute majority. If it fails to do so, the initiative returns to the president, whose choice, together with his cabinet, can, this time, be approved by simple majority. Upon failure, the Sejm needs only a simple majority for its candidate. If the Sejm again fails to appoint a prime minister, the president can dissolve the Sejm immediately or appoint a prime minister without the confidence of the Sejm. If the prime minister and his cabinet do not win a confidence vote within six months, the president is obliged to dissolve the Sejm (Articles 57-62). To remove the government, the Sejm was given the option of passing either a simple or a constructive vote of no confidence. If the vote was not constructive, the president could choose to accept the resignation of the government or to dissolve the Sejm (Article 66). The prime minister was only required to consult the president about the appointment of the ministers of foreign affairs, defence and the interior ministry. The president was to exercise “general supervision” of defence and international affairs, and foreign policy was to be conducted “through” the minister of foreign affairs. There were some reductions in the president’s powers of appointment. The government could drastically shorten the legislative procedure by simply declaring the matter “urgent” (16).
The 1997 constitution shortens the process of government formation. If the Sejm’s candidate fails to gain an absolute majority, the president can nominate a candidate, whose cabinet can be approved by simple majority. If this candidate is unsuccessful the president is simply obliged to dissolve the Sejm (Article 155). A constructive vote of no confidence is the only way of removing the government (Article 158). The president is given no role in the appointment of ministers (Article 154). There is another vague downgrading of the President’s special responsibilities (Article 133.3, 134.2). In contrast, he receives greater powers of appointment (Article 144.20-27). The veto override is reduced to a three-fifths majority of the Sejm (Article 122.5). Presidential acts, which require co-signature, can only be signed by the prime ministers, rather than relevant ministers as previously was the case. In 1999, a number of legislative and administrative changes were implemented with the effect of significantly increasing the prime minister’s control over the cabinet (Sanford 2002, pp. 156-157).
[Table 1 about here]
Functioning of the system
The constitution is of only limited use in understanding how Polish semi-presidentialism actually works. Most scholars of Polish semi-presidentialism react to the limits of constitutionalism by providing a narrative of political events (Jasiewicz 1997; Michta 1998; Millard 1994; Millard 2000; Van der Meer Krok-Paszkowska 1999; Wiatr et al. 2003). Instead of repeating and extending these excellent narratives, I adopt a more analytical approach, which argues that the operation of Poland’s semi-presidential system can be understood as the interaction of four factors: the constitutional powers of the president, the holder of the presidency (Millard 1999, pp. 31-32; Millard 2000), the relationship of the government to the president and the relationship of the government to the Sejm. Nine permutations of these factors occurred in practice (see Table 2). In other words, the functioning of the system has varied very substantially over time. This section will begin with a brief outline of the personality and party political factors. It will then proceed to evaluate the roles of the president and prime minister in Polish government and politics.
[Table 2 about here]
Presidents
President Wałęsa had a politically hyperactive conception of the presidency. He did not see his elevation to the presidency as requiring a more consensual political stance. He maintained a consistently, and sometimes stridently, right-wing position. Wałęsa frequently tried to go beyond his constitutional powers and to use them in ways that were never intended. Wałęsa won many tactical victories. Nevertheless, his aggressive politics, and spectacular failure to build alliances with individuals, never mind parties, meant that his presidency was largely conducted from a situation of embattled, but prominent, isolation. Wałęsa favoured the development of a strong presidency, but he never seems to have been tempted by the notion of a hands-on governing presidency. While he often interfered in government and ministerial policy, he clearly saw the ongoing co-ordination, development and implementation of policy as the responsibility of the government. He envisioned his role rather as laying the correct political foundations for correct policy.
Kwaśniewski’s idea of the presidency was in many respects the opposite of Wałęsa’s. His conception was consensual and strategic. He wanted to be the president “of all the Poles”. Kwaśniewski had built the Democratic Left Alliance (SLD), post-communist Poland’s, most, or even only, successful political party. He cultivated good relations with a wide range of politicians, as well as journalists, businesspeople and others. Unsurprisingly, he worked within the Constitution, since most of his tenure was under the 1997 Constitution, on which he was perhaps the greatest single influence. Kwaśniewski generally used his powers to further the aims of the general consensus on democracy, international integration, and free markets which embraced most of the Polish political spectrum, but was also ready to exercise power for the benefit of the left. He rarely fought battles he could not win.
Poland’s latest president, Lech Kaczyński, was once the right-hand man of President Wałęsa. The early months of his tenure suggest his conception of the presidency is more reminiscent of Wałęsa’s active approach than Kwaśniewski’s strategic approach. Kaczyński has aggressively pushed his constitutional powers to the limit in the pursuit of partisan advantage. In contrast to Wałęsa, Kaczyński has long been committed to political parties. The current minority government is based on the Law and Justice party, founded and controlled by the president and his twin Jarosław. This puts him in a much stronger position than that Wałęsa suffered for most of his term of office. So far, Kaczyński’s tactical victories have not enabled him to provide, or to bypass, the parliamentary majority necessary to push through right-wing policies.
Party Competition
The next two factors, the government’s relation to the president and the Sejm, are largely effects of party competition. The Polish issue space is basically two-dimensional (Kitschelt et al. 1999, p. 233), but political vocabulary is one-dimensional. The first dimension of Polish party competition is a continuum from secularist, universalist, post-communists to Catholic, nationalist, anti-communists. The second dimension is the familiar continuum of economic intervention. Polish parties are more clearly distinguished on the first than the second dimension (Szawiel 1999; Szczerbiak 1999; Szczerbiak 2003). The left is secularist and social democratic. It has consistently been represented by the SLD, which has also tended to be a party of business. The centre tends to be culturally moderate and pro-market. The Democratic Union (UD), the Freedom Union (UW) and the Civic Platform (PO) have represented the centre. The right is Catholic. Some of its policies and rhetoric have been pro-market, while others have been pro-union or have increased social spending. Its party political representation has been fragmented and unstable. A diverse array of populist forces has been more difficult to fit into these dimensional schemes. The most consistently important of these parties has been the Peasant Party (PSL).
Throughout his term, President Wałęsa effectively had no party political base, with the minor exception of the Non-party Bloc for the Support of the Reforms (BBWR). Wałęsa began his tenure with a centre-right minority coalition government. He then cohabited with a right-wing minority coalition and centre-right minority coalition. These governments were not ideologically opposed to him, or, in terms of presidential elections, electorally opposed to him, but they were effectively rivals in the government of Poland. He ended his tenure cohabiting with a majority coalition of leftists and peasants. Kwaśniewski began his term with his own party as the senior governing party. He then cohabited with a majority centre-right coalition, which became a minority right-wing government, when the Freedom Union exited. The left-peasant coalition then returned to power. With the ejection of the peasants, this became a minority government.
Prime Ministers and Governments
In this sub-section, I examine various elements of the power of the Polish president and prime minister. The election of President Wałęsa highlighted the illegitimacy of the “contract Sejm” elected according to the Round Table agreement. It was generally agreed that it would have to be replaced with a fully-freely elected parliament, but the timing of its demise, and the nature of the electoral system, which would replace it, were matters of protracted and bitter dispute. On both matters, the Sejm effectively won out over the president (Millard 1994, pp. 157-158). President Wałęsa dissolved the first (freely elected post-communist) Sejm when the Solidarity trade union representatives brought down Suchocka’s government by mistake (Jasiewicz 1997, p. 148). The next three parliaments ran their full course. In 2004, in the aftermath of Miller’s resignation, the opposition tried, but failed, to force the president to dissolve the Sejm by refusing to approve his candidate for the premiership. In January 2006, President Kaczyński used the threat to dissolve the Sejm on the controversial grounds that the budget had not been passed in time to convince two parties to support his party’s minority government without receiving any ministerial appointments (Śmiłowicz 2006).